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TMI Blog2021 (12) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... the independent seizure of other cheques from the same cheque book, details of which were separately given in several items of the Seizure List, indicates that the CBI merely seized the empty, or partially empty, cheque book which might not have contained the leaves of the incriminating cheques, thereby lending credence to the possibility of the accused having issued the dishonoured cheques. Equal weight can very well be attached to either of such theories for the purpose of preponderance of probabilities. In the present case, no valid documentary evidence could be produced by the complainant and/or the prosecution for substantiating the legality and/or existence of any enforceable debt or other liability on the part of the accused and the Court has to resort to a balance of probabilities between the contentions of the parties - A plausible case has been made out by the defence as regards the non-existence of any such legally enforceable debt or other liability, also because the said debt/liability is not reflected from the relevant balance-sheet which was produced as evidence. Thus, illegal share transactions, which were the premise of such alleged liability, could not be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 18, 2017, the Additional District and Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Calcutta set aside the order of conviction dated June 29, 2016 and acquitted the accused-respondent. 3. The present appeal has been preferred against the said judgment of acquittal. 4. The four appeals are between the same parties and arise from similar orders as above, passed in respect of different cheques. C.R.A. No.424 of 2017 arises in respect of cheque no.713384 dated November 24, 2008 for an amount of ₹ 1,75,00,000/- drawn on the Axis Bank Limited, Burrabazar Branch, Kolkata. C.R.A. No.425 of 2017 arises from cheque no.713382 dated November 17, 2008, C.R.A. No.426 of 2017 with cheque no.713378 dated November 7, 2008 and C.R.A. 427 of 2017 from cheque no.713380 dated November 12, 2008, all to the tune of ₹ 2,00,00,000/- each, drawn on the same bank as in C.R.A. No.424 of 2017. 5. In view of the allegations and evidence being virtually the same in all the four cases, all the appeals are taken up for hearing and being decided together. 6. The complainant, M/s. Rajco Steel Enterprises, a Partnership Firm, allegedly granted financial assistance to the accused-resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probable on the standard of reasonability of a prudent man . 11. Learned counsel for the appellant places reliance on the judgment of Uttam Ram Vs. Devindar Singh Hudan, reported at (2019) 10 SCC 287, that of Kishan Rao Vs. Shankargouda, reported at (2018) 8 SCC 165 and Shree Daneshwari Traders Vs. Sanjay Jain, reported at (2019) 16 SCC 83 in support of the above argument. 12. Learned counsel for the appellant then seeks to demolish the defence raised by the accused-respondent, arguing that the same was not a probable one. As such, it is contended, the accused failed to rebut the presumption which rose under Section 139 of the N.I. Act. 13. On such score, learned counsel for the appellant submits that the accused stated in her examination-in-chief that the complainant did not want to work in his personal account for trading or speculating because he did not want his family members to know about it. However, such contention is belied by the following facts: 14. The complainant is a partnership firm and cannot have a personal account, nor could it have any family members, being a juristic entity. 15. Ramesh Kumar Gupta, who allegedly entered into secret speculative tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d give rise to an adverse inference against the accused. 19. It is next argued on behalf of the appellant that the CBI seized on April 4, 2009 from the office of the husband of the accused at 136, Cotton Street, Kolkata, the cheque book which initially contained the cheque leaves from Nos. 713317 to 713388, but was bereft of the said cheque leaves which had been issued in the manner as set out in Exhibits 10 and G, which are the bank statements of the accused and as indicated in the evidence of the accused when the cheque book was seized. 20. It is argued that several cheques from the series, to which the cheque book-in-question pertained, were issued, as per reflection in the bank statements of the accused and two cheques, bearing nos. 713353 and 713354, were used by the accused to withdraw cash. The cheques bearing nos. 713341 and 713342 were issued in favour of the relatives of the accused and honoured duly, prior to the CBI raid, which is also corroborated from the bank statements of the account of the accused maintained with the Axis Bank. 21. That apart, learned counsel for the appellant argues, Entry Nos. 1,4,5,12 and 13 of the Seizure list indicate that, upon seizu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon receipt of the demand notice issued by the complainant s advocate, tantamount to an admission of the accused regarding the receipt of such money. The accused failed to corroborate her alternative case of a different cause for the receipt of money, thereby failing to discharge the onus of proving such case, which lay upon her. 29. Cheque no.713386, to the tune of ₹ 1,00,00,000/-, which was seized by the CBI as Entry No. 15 of the Seizure List (Exhibit C) was drawn in favour of the complainant, though the same had not been made over to the complainant. Thus, it is contended, the accused was liable to pay such sum to the complainant, which liability could not have arisen on account of profit and/or loss during the course of speculation in the future and options segment of the share market, because it would be preposterous to imagine that a person would be able to foresee the profits and /or losses, arising out of such business in advance. 30. As such, learned counsel for the appellant assails the impugned judgment of the Sessions Judge, acquitting respondent no.1, on the above grounds. 31. On the other hand, learned counsel for the respondent no.1 argues that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment only in the month of May, 2009, that is, after a delay of about 5 months and 20 days, just before the validity of the cheque was about to expire, that too after the raid of the CBI on April 4, 2009, when the cheques were supposed to be in the custody of the CBI as per their own seizure list. No reason therefor was cited in the complaint. 36. The respondent no.1 further argues that the complainant has miserably failed to prove that it is the legal holder of the subject cheque and has received the cheque. None of the partners of the firm were produced by the prosecution as witness to throw light on the aspect of issuance of cheque, particularly when only Ramesh Gupta, one of the partners, has made ambiguous and absurd statements. It is argued that, as per the provisions of Section 114 of the Evidence Act, a negative inference can be drawn against the complainant for withholding such vital witnesses. 37. The basic ingredient necessary to have committed the offence under Section 138 of the N.I. Act has not been satisfied in the present case, it is argued, since the cheque has not been proved to be handed over by the accused and/or the complainant could not prove that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to produce any written document of loan confirmation or loan agreement to substantiate his claim of advancing financial assistance of such a huge amount. Reliance, in such regard, is placed on the following judgments: I) Krishna Janardhan Bhat Vs. Dattatraya G. Hegde [AIR (2008) 4 SC 1325]; II) John K. John Vs. Tom Varghese (supra); III) Rev. Mother Marykutty Vs. Reni C. Kottaram [(2013) 1 SCC 327]; IV) Basalingappa Vs. Mudibasappa (supra). 46. Learned counsel further submits that the issue of legal recovery of debt is not a matter of presumption under Section 139 of the N.I. Act, which merely raises presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or other liabilities. 47. Learned counsel for the respondent no.1 next submits that the PW1 is unaware as to when and why the alleged financial assistance was advanced to the accused and when he started demanding back the same. Learned counsel relied on relevant extract from pages 7 and 8 of the Paper Book to harp on such point and relied on John K. Abraham Vs. Simon C. Abraham [(2014) 2 SCC 236] and M.S. Narayan Menon (supra), in such context. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The Seizure List was not disproved and was prepared by an independent investigating agency. The case of the complainant was, thus, not proved beyond reasonable doubt. 55. The police itself had seized the impugned cheques from the office of the husband of the accused, so any misuse of the cheques would be detrimental to the person himself who manipulates with the instrument and no further complaint was required. Further, the suggestion had been put forward to PW1 (Ramesh Gupta) during his cross-examination that the impugned cheques had been illegally procured by the complainant Firm after the CBI raid. 56. Learned counsel for respondent no.1 submits that no reply to the demand notice was given as, at that time, the respondent no.1 was pregnant and had delivered a baby after a week on May 27, 2009. That apart, the CBI investigation was on and respondent no.1 was undergoing mental tension as she was maliciously implicated and framed in the said case. No reply to the notice was given by her under such circumstances. Failure to reply to a notice, it is contended, does not attract any presumption under Section 139 of the N.I. Act, to the effect that the cheque was issued. 57. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The submissions made in C.R.A. No.424 of 2017 are adopted in connection with the other appeals as well, apart from certain factual distinctions as indicated above. 63. For a proper appreciation of the legal backdrop against which the present case is set, the cumulative scope of Sections 138 and 139 of the N.I. Act come to the forefront. The said Sections are set out below: 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend twice the amount of the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that they did not exist. It was clearly held that the accused, apart from adducing direct evidence to prove non-existence of the contract or the debt or liability, may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may shift again on to the complainant. 69. In Rangappa Vs. Shi Mohan, reported at (2010) 11 SCC 441, also cited by the appellant, it was further elaborated that the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof. It was further specified by the Supreme Court that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities . If the accused is able to raise a probable defence which creates doubts about the existence of a legally en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant juncture, contained in the seized cheque book, thereby obviating the possibility of such cheques having been issued by the accused at the relevant juncture. On the other hand, the prosecution case is that the independent seizure of other cheques from the same cheque book, details of which were separately given in several items of the Seizure List, indicates that the CBI merely seized the empty, or partially empty, cheque book which might not have contained the leaves of the incriminating cheques, thereby lending credence to the possibility of the accused having issued the dishonoured cheques. Equal weight can very well be attached to either of such theories for the purpose of preponderance of probabilities. 75. Although Section 114 of the Indian Evidence Act, clothes an official act with the presumption of being duly done, upon subsequent adduction of evidence, in particular the Seizure List itself, such presumption is rendered academic, since the aforesaid facts are elicited from the said Seizure List itself. Even if a presumption of correctness is attached to the Seizure List, the Schrodinger s cat dilemma between the two probable views, diametrically opposite to each othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a normal person, could not have undertaken such illegal transactions, as alleged, gratis for the complainant, without any consideration whatsoever. 83. Hence, the very premise of the presumption raised by Section 139 in the present case is demolished sufficiently by applying the standard of preponderance of probability. 84. That apart, it is well-settled that, merely because a different view is possible on the facts of the case, the Appellate Court shall not set aside or reverse the findings and/or decision of the Trial Court. 85. Upon a perusal of the judgment and order impugned in the appeal, it is evident that the Trial Judge took sufficient pains to discuss all the relevant facets of the matter and the governing law and, upon comprehensive consideration of the materials-on-record and the law applicable, arrived at the findings and the final decision assailed in the present appeal. Merely because of a second opinion is possible, it is not for this court, sitting in appeal, to reverse the said decision of the Trial Court, in the absence of any infirmity and/or illegality in the Trial Court s judgment. The inferences drawn by the Trial Court and the conclusions arriv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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